Legalizing Torture

(1st post in a series on the House GOP's attempt to legalize "Extraordinary Rendition". Links: 1, 2, 3, 4, 5, 6, 7, 8.)

Katherine the Sorely Missed asked me to post this. The rest is hers, though I second it.

This is probably the most important post I've ever written. Certainly it is the most urgent.

The Republican leadership of Congress is attempting to legalize extraordinary rendition. "Extraordinary rendition" is the euphemism we use for sending terrorism suspects to countries that practice torture for interrogation. As one intelligence official described it in the Washington Post, "We don't kick the sh*t out of them. We send them to other countries so they can kick the sh*t out of them.”

The best known example of this is the case of Maher Arar. Arar, a Canadian citizen, was deported to Syria from JFK airport. In Syria he was beaten with electrical cables for two weeks, and then imprisoned in an underground cell for the better part of a year. Arar is probably innocent of any connection to terrorism.

As it stands now, "extraordinary rendition" is a clear violation of international law--specifically, the U.N. Convention Against Torture and Other Cruel, Degrading and Inhuman Treatment. U.S. law is less clear. We signed and ratified the Convention Against Torture, but we ratified it with some reservations. They might create a loophole that allows us to send a prisoner to Egypt or Syria or Jordan if we get "assurances" that they will not torture a prisoner--even if these assurances are false and we know they are false.

Last month Edward Markey, a Massachusetts Congressman, introduced a bill that would clearly outlaw extraordinary rendition. But Markey only has 22 cosponsors, and now the House leadership is trying to legalize torture outsourcing--and hide it in the bill implementing the 9/11 Commission Report.

These are excerpts from a press release one of Markey's staffers just emailed me:

The provision Rep. Markey referred to is contained in Section 3032 and 3033 of H.R. 10, the "9/11 Recommendations Implementation Act of 2004," introduced by House Speaker Dennis Hastert (R-IL). The provision would require the Secretary of Homeland Security to issue new regulations to exclude from the protection of the U.N. Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, any suspected terrorist - thereby allowing them to be deported or transferred to a country that may engage in torture. The provision would put the burden of proof on the person being deported or rendered to establish "by clear and convincing evidence that he or she would be tortured," would bar the courts from having jurisdiction to review the Secretary's regulations, and would free the Secretary to deport or remove terrorist suspects to any country in the world at will - even countries other than the person's home country or the country in which they were born. The provision would also apply retroactively.

This provision was not part of the 9/11 Commission's recommendations, and the Commission actually called upon the U.S. to "offer an example of moral leadership in the world, committed to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors." The Commission noted that "The United States should engage its friends to develop a common coalition approach to the detention and humane treatment of captured terrorists. New principles might draw upon Article 3 of the Geneva Conventions on the law of armed conflict. That article was specifically designed for those cases in which the usual laws of war did not apply. Its minimum standards are generally accepted throughout the world as customary international law." These standards prohibit the use of torture or other cruel or degrading treatment....

Rep. Markey said, "When the Republicans 9/11 bill is considered in the House, I intend to offer an amendment to strike the torture outsourcing provisions from the Republican bill and replace it with restrictions restoring international law as provided in my bill. It is absolutely disgraceful that the Republican Leadership has decided to load up the 9/11 Commission bill with legislative provisions that would legitimize torture, particularly when the Commission itself called for the U.S to move in exactly the opposite direction."

There is no possible way for a suspect being detained in secret to prove by "clear and convincing evidence" that he will be tortured if he is deported--especially when he may be deported to a country where has never been, and when the officials who want to deport him serve as judge, jury and executioner, and when there is never any judicial review. This bill will make what happened to Maher Arar perfectly legal, and guarantee that it will happen again.

Markey's staffer wrote to me that "this bill could be on the House floor as early as next week."

To everyone: Please, please, please write to your Representative and tell him (or her) to vote against the bill and/or for Markey's amendment.

To other bloggers: Please consider linking to this post. This bill will pass unless people know about it, and no newspaper has reported on it. The press coverage of the CBS memos showed that blogs can break a story and have an effect--and this story is about 100 times more important than Bill Burkett's shenanigans and CBS news’ negligence.

I'm talking to Republicans, conservatives and libertarians as well as to Democrats and liberals. I know that you are more decent than this, and that you do not approve of torture. Please prove me right, and do something about it. Republicans are the majority in Congress, and they are much more likely to listen to you than to any Democrat. The press is much more likely to report on the story if liberal and conservative blogs both cover it.

UPDATED: See this post for more details.

UPDATE 2 (Jan. 25 2005): UPDATE, January 2005 I noticed that this post is still bouncing around the web & some people seem to think the bill is still pending.

Long story short: The final version 9/11 Intelligence Reform Bill that was passed by Congress and signed into law did not legalize "extraordinary rendition" (a.k.a. "torture outsourcing.) The provisions on extraordinary rendition were, thankfully, deleted.

Unfortunately, the practice of extraordinary rendition continues. For a short introduction to the topic, you can read this article. (Note that it was written before the torture outsourcing language was completely deleted from the Intelligence bill.) For recent news stories on the subject do a google news search for:
--Khaled el Masri
--N379P
--Mamdouh Habib
--rendition CIA
--rendition torture

Attorney General nominee Alberto Gonzales defended the legality of extraordinary rendition in his written testimony to the United States Senate (see Senator Durbin's question 12 & Gonzales' response, pp. 9-10.) Gonzales told Durbin that renditions were legal if we got "assurances" from the governments of Syria, Egypt, etc. that the prisoner we send to them would not be tortured.

In practice, these promises are worthless, and the U.S. government almost certainly knows they are worthless.

Maher Arar's lawsuit against the Justice Department is still pending in a Brooklyn federal court. The Bush administration recently petitioned to have the case dismissed because it would require the revelation of information that would threaten national security. I don't know whether they are likely to succeed.

If you are still willing to email or call your Congressmen and Senators, you could talk to your Senators about the Gonzales nomination, and ask both your Senators and House Reps to support Congressman Edward Markey's bill to clearly outlaw "extraordinary rendition". (Note: that's last year's version, I believe he has to introduce it again this year under a different bill number.) So far Markey's bill has the support of 24 House Democrats and 0 House Republicans, and there is no Senate version.

Comments

[Katherine]

Thank you.

I read the actual text of the bill(link here. Warning: Giant, 500+ page PDF. The relevant sections are 3032 and 3033, on pages 213-17.) It's worse than I thought. Terrorism suspects seem to be excluded from the deportation provisions of the Convention Against Torture entirely, even if they could do the impossible and prove by clear and convincing evidence that they would face torture.

Everyone else who is challenging their deportation (the legal term is "removal") to a country where they're in danger of torture under the Convention Against Torture must prove that by "clear and convincing evidence."

If it's an ordinary deportation there is some judicial review, but judges are not supposed to review the constitutionality of the regulations. (I don't know if they can strip jurisdiction like this. But they have more freedom to do that in immigration laws than in other laws.)

This is very, very bad. The Convention Against Torture is the strongest legal protection that immigrants in danger of persecution have, the only one that courts can really enforce against the executive branch. This weakens it for every immigrant--asylum seekers, legal permanent residents who moved to the U.S. at age 5 convicted of drug possession, everyone.

[John Thullen]

Excellent post.

This and the two previous posts make me wish Moe's asteroid would conk me right in the forehead.

[Opus]

Linked. Thank you so much for posting this.

[Sebastian Holsclaw]

I'll write about it on RedState. Give me a day.

[Katherine]

Sebastian--I really, really appreciate that.

Let me know if you have any factual or legal questions. That goes for anyone, and especially anyone right-of-center, who's considering posting on this issue but has some doubts--please feel free to email me. (katherinesblog@hotmail.com)

[Gary Farber]

"Katherine the Sorely Missed asked me to post this. The rest is hers, though I second it.

This is probably the most important post I've ever written. Certainly it is the most urgent."

Peculiar syntax. Apparently the second paragraph is from Katherine, though there is no note by grammar, indication, spacing, or otherwise than abstraction from the prior paragraph.

My own post is to say that if Katherine wants to post "the most important post I've ever written..." she really should bother to do so. I can't imagine why she shouldn't. I don't understand why she declared she was going to stop blogging, when it was obvious she was going to keep blogging, and indeed, she kept blogging. So now she's still blogging, so, y'know, maybe she should keep blogging.

It's just a thought. Maybe this pretense helps her psychologically somehow, which is possible, and I'm not privy to that sort of thing.

I just wish she'd take up blogging again, since she's blogging again.

Because she's a great blogger.

So do something you're great at, Katherine. Limit it as you wish. Whatever it takes. Just blog.

Learn to integrate blogging into life, in however limited fashion. It's useful. It's good. Just do it.

[Katherine]

The pretense limits the quantity to the point where I can manage a job search, a thesis, graduating law school, etc. I'm a horrendous procrastinator and I'm particularly swamped right now.*

That's the purpose, and it seems to work: this way I only post the one thing a month that's urgent instead of my daily ramblings. That said, it is very silly, and if I end up posting follow ups it will probably become too silly even for me. In that case I'll get a password again instead of harassing the rest of OW to post for me.

*the clerkship application process goes poorly, so I have to find a plan B, which involves many many involved fellowship applications. Also the House Republicans, on top of everything else, are really making it difficult to write a paper proposal on this subject.

[crutan]

Thank you, Katherine, for bringing this issue to our attention.

I've blogged on it, and asked a whole bunch of folks to take action. Some of them already have, myself included.

The media angle is an important one here. If I had any contacts in the media, I'd push this to them as hard as I could.

crutan

[Edward]

Thanks for this Katherine.

I've written my Congressman and will write my journalist friends.

Keep up the good fight!

[Roxanne]

Glad to see you're back.

Great post, which I'm also passing along.

[Carridine]

Ma'am,
I served in the Army Security Agency, did years monitoring Korean Communists from my mountaintop just south of the DMZ.

I agree, right out that torture is a sad and shameful situation, force, choice.

You and I come from, are products of, a law-abiding citizenry in a nation based on obedience to just laws, for all citizens. The points you raise are particularly valuable to humans with the moral and spiritual maturity to appreciate the value of submitting to a higher reality than MY conscience.

So you and I can perceive a dilemma: IF America's enemies have publicly and privately espoused a stand against American law; IF they have, by word and deed, over a period of years, demonstrated that they are not at all inclined to obey American law, respect American values (of self-determination, individual responsibility, the equality of men and women, human rights, etc); and have, in truth, publicly proclaimed their burning desire to 1)subjugate ALL Western nations under Shari'a Law and/or 2)kill the Satan-loving, licentious non-believers BECAUSE the non-believers have no rights to life, liberty OR the pursuit of happiness...

THEN it follows that these few, these extreme-true-believers, ready to die in order to KILL YOU and YOUR LOVED ONES, perceive America's laws and procedures as WAYS TO EXPLOIT American WEAKNESS, and return to killing Americans.

Torture: IF I thought this is a thin-entering wedge, to be turned against Americans BY Americans later, I would be absolutely against EVER approving ANY use of it.

Americans, however, have voluntarily dis-banded after EVERY modern military effort, and returned home to become once again citizens, no longer soldiers, no longer killers.

Americans have, further, shown a remarkable resilience to the call of torture, and it is outside the pale for the huge, overwhelming majority of Americans, maybe 99%?

And Americans in the field have a very good record of capturing people ACTIVELY INVOLVED in terrorist activities (see Saddam Hussein's capture, due to American analysts like -blush- ME. But I did it in Korea).

So what I'm asking is this: IF you knew that a few hours of excruciating nail-pulling or verbal abuse would result in a known terrorist revealing information which immediately is applicable to protecting the lives of Americans, would YOU allow it under those strict conditions?

I've set up a difficult moral decision, but I do believe this acceptance of extant realities is the motive for Americans trying to protect Americans at the expense of Iraqi and other captured-in-the-field terrorists (alleged humans).

I'm interested in your response, Ma'am.

Dr Kerry Dean

[JKC]

Allow me:

"Americans, however, have voluntarily dis-banded after EVERY modern military effort, and returned home to become once again citizens, no longer soldiers, no longer killers."

Past results are no guarantee of future performance.

"So what I'm asking is this: IF you knew that a few hours of excruciating nail-pulling or verbal abuse would result in a known terrorist revealing information which immediately is applicable to protecting the lives of Americans, would YOU allow it under those strict conditions?"

Define "known terrorist." Does that descriptor apply to convicted terrorists only? What about "enemy combatants?" Most importantly, who decides who these "known terrorists" are? The Administration whose Secretary of Education called the NEA "a bunch of terrorists"?

[Edward]

Dr. Dean

I won't speak for Katherine, who's infinitely better informed on such matters than I am, but this is not an accurate assessment of the issue:

So what I'm asking is this: IF you knew that a few hours of excruciating nail-pulling or verbal abuse would result in a known terrorist revealing information which immediately is applicable to protecting the lives of Americans, would YOU allow it under those strict conditions?

I doubt you'd find many Americans or others crying over verbal abuse directed at bin Laden, but this proposal is seeking legalization for practices which have been used against arguably innocent people. To put it another way

So what I'm asking is this: IF you knew that a few hours of excruciating nail-pulling or verbal abuse would result in an innocent person confessing to anything at all to make it stop, would YOU allow it under any conditions?

Until you can say yes to the this, or have some magic way of knowing who is or is not a terrorists, your first question remains irrelevant.

[bellatrys]

On the efficacy of torture

Yesterday morning there was an interview with a Canadian journalist. It is a fascinating interview, and a dismaying one. You can listen to it all here, but in sum: the journalist, in a story that in most respects could have come out of WWII or WWI or Kipling, together with his interpreter, ended up in the hands of the partisans, not the troops they were expecting to meet. They managed to convince the rebel leader they were legit - but before they were released, the Emir was killed in a shelling and all their documents were lost. They spent the next days being a problem to their captors, who passed them from one group to another, not knowing what to do wiht them, and torturing them to find out who they were. But they were unable to prove or disprove that the two were either enemy spies or in fact journalists.

Then someone had the bright idea of googling, and found that yes, the gentleman in question was on the internet, and was indeed who he claimed to be, and they were released. (This is where it differs from Kipling, though it was foreshadowed by Hergé decades ago.)

Our intelligence efforts, if they can be called that, at Gitmo and in Iraq are a joke from Dis.

Torture yields useless information. Aristotle pointed this out in his advice for DIY court cases, in a time when it was routine and legal to do so, when torture was SOP in the court systems of the ancient world. Torture yields no context, no meaning, and no way of verifying itself.

What it *is* good for discouraging the very idea of resistance, lest you be taken away in the Black Ravens, to reappear never, or lacking imporant body parts, pour encourager les autres. The principle use of torture is terrorizing others into submission,

Up to a point.

Then it becomes good for inspiring further resistance.

Where and when that tipping point comes, and when it is possible to pull back from that brink - is something you only find out when it's too late. But it was probably too late in April, and is certainly too late now.

[Jadegold]

Carradine raises the 'ticking bomb' scenario in an attempt to justify torture. But I'd challenge anyone to produce a single instance where the use of torture has produced the dramatic result of preventing an attack or some other incident.

Moreover, Carradine seems not to have heard of PTSD or other psychological health issues associated with the stresses and horrors of combats. Imagine what damage could be created by allowing our military to become involved with torture--a practice that requires the systemic dehumanization of others.

BTW, I'm somewhat surprised a vet would seemingly advocate torture.

[John Thullen]

Dr. Dean wrote:

"I've set up a difficult moral decision, but I do believe this acceptance of extant realities is the motive for Americans trying to protect Americans at the expense of Iraqi and other captured in-the-field terrorists (alleged humans).

If their humanity is merely alleged, then you haven't set up a "difficult moral decision". It's a slam-dunk. Let the torture commence.

He also wrote:

"Torture: If I thought this a thin-entering wedge, to be turned against Americans BY Americans later, I would be absolutely against EVER approving ANY use of it."

I have no reason to doubt your word. However, if I believe (however irrationally) the words of certain members of a certain Party and certain enablers on the radio and on the Internet to be a rhetorical foreshadowing of the thin-entering wedge you refer to, then I am faced with a moral dilemma as well.

I don't want to go there. Neither do you.

Thank you.

[j pinson]

Can we get a list of the co-sponsors? If my representative is one of them, I'll want to tailor my missive accordingly.

[doncoop]

Dr. Dean asks:
"So what I'm asking is this: IF you knew that a few hours of excruciating nail-pulling or verbal abuse would result in a known terrorist revealing information which immediately is applicable to protecting the lives of Americans, would YOU allow it under those strict conditions?"

According to Amnesty International, they have no evidence that torture has ever produced information that has saved lives. Dr. Dean, please give us one such example. Torture has been used for millenia. If it has any value, surely you can come up with one example?

[TeaJay]

To Dr. Dean:
Re: Lessons from the use of tortue in Algeria.

I think that the viewing of American laws as a weakness that allows terrorists to thrive is one of the most dangerous ideas this country has faced. Remember the entire foundation of democratic rule is summed up in the phrase "We are a nation of laws, not of men". It is the sanctity of the individual against the government, the presumption of innocence, that gives power to the people. If these ideas are our downfall, then democratic experiment that is the USA will fail and it will be proven that it is folly to try democracy in the world. I will not jump at the chance to pull the nature of the country down - killing it for certain - I like our chances better the way we work now.

From all that I've been able to read about torture, I can not view it as some importantly powerful tool. It seems to be the most self-defeating way to go about a strategy of security a victory. For torture to be applied in a way that is compatible with our own foundation would require evidence, trials, review. Torture destroys the presumption of innocence - and this bill seems to target that directly - all done in the dark. That is my major problem with it. It is corrosive, and a government that uses the PATRIOT act to prosecute software piracy exhibits the facts about govenment that everyone has observed, power, once granted, does what it will.

The use of torture by the French in Algeria is often cited as an example of productive torture. However, that is a very shallow reading of what happened. i.e. France came out OK so torture was OK. This is from memory of a few months ago - but I'll give it my best shot.

The French set up "terror warrants" in Algeria in order to gather intellegence. Thus any use of torture had to be OK'd by a judge. In review, torture warrants grew from a few hunderd to a few thousand in the span of only two years. Thus, even in a system of judical restraint that was supposed to limit the application of torture to only the most serious cases, the limitation was unsuccessful. Torture became the prime intellegence tool and several important figures in the anti-French forces were able to use this fixation to rid the movement of more moderate influences and keep investigators tied up torturing non-players. It has been acknowledged by those involved that routine investigative work went undone because it became the commonly held belief that torture was the fastest and best option.

Addtionally, upon return to France, a good number of the torturers were unable to successfully integrate back into soceity because of the pschological damage torture also inflicts on the torturer.

This is why the question you posed must continue to be answered in the negative. People have neither the infallibility this torture law implies, nor is the utility of torture what people belive it must be.

[No torture please]

Can Dr. Kerry Dean cite ANY evidence that torture actually works (except, of course, in old movies)?

Recent reporting is that MORE useful intelligence is now being obtained from Iraqi captives, since the prison scandal put a stop to the shenanigans. The carrot is working.

[Bernard Yomtov]

The question is utterly irrelevant. This issue is not being discussed in a freshman philosophy class. It's the Congress of the US. The hypothetical conditions - omniscience and lack of alternatives - can never arise, so whatever one's answer, it is no argument in favor of this monstrous legislation.

[Erik Lindquist]

I think this is a great bill! I suspect Ann Coulter of being a terrorist, and if this bill passes we can ship her off to Uzbekistan for a few rounds of rape and torture! I am certain that it was with this very thought in mind that the bill was proposed in the first place.

[digitalprimate]

Linked. I'm sure you know, but you've been linked on the agonist ( http://scoop.agonist.org )

Just in case.

Has anyone tried to get this to fark.com or /. ?

[Edward]

thanks digitalprimate!

fark.com has it up already...I know because we're getting tons of hits from there.

[Katherine]

Some clarifications:

1) The provision is not a rider to the 9/11 Bill. It is in the text of the bill.

2) It would help to refer to the title and number of the bill at the beginnging of your letter, e.g.:
"I am writing in opposition to Sections 3032 and 3033 of H.R. 10, the "9/11 Recommendations Implementation Act of 2004," on pages 213-217 of the bill."

3) Here is a direct link to the relevant text. It might be helpful to include that if you email your Congressman.

4) It would also help to explicitly mention that Congressman Edward Markey of Massachusetts is planning to introduce an amendment, and that you support Markey's amendment.

5) here is the list of cosponsors:
"Mr. HASTERT (for himself, Mr. DELAY, Mr. BLUNT, Ms. PRYCE of Ohio, Mr. HOEKSTRA, Mr. HUNTER, Mr. YOUNG of Florida, Mr. SENSENBRENNER, Mr. HYDE, Mr. TOM DAVIS of Virginia, Mr. OXLEY, Mr. DREIER, Mr. COX, Mr. THOMAS, Mr. NUSSLE, Mr. BOEHNER, and Mr. SMITH of New Jersey"

[Katherine]

Sorry, that link just died too. Here is how to look up the relevant text of the bill:

1. Go to 3. scroll down to Section 3032, and click on the link.

[Katherine]

Criminy, sorry about that.

Let me try again:
1. Follow this link.
2. Type in "HR 10" in the bill number search box. This will give you a linked table of contents.
3. Scroll down to Section 3032, and click on the link.

I confess, torture is bugbear of mine, and I didn't link to this, I went to the effort to write my own rant.

If anyone cares to read it, I'v